State v. Paden, No. 35860.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDE GRAFF
Citation202 N.W. 105,199 Iowa 383
Decision Date10 February 1925
Docket NumberNo. 35860.
PartiesSTATE v. PADEN.

199 Iowa 383
202 N.W. 105

STATE
v.
PADEN.

No. 35860.

Supreme Court of Iowa.

Feb. 10, 1925.


Appeal from District Court, Shelby County; Tom C. Whitmore, Judge.

Defendant was tried and convicted for the crime of conspiracy. From the judgment entered, he appeals. Reversed.

[202 N.W. 106]

Anson H. Bigelow, of Omaha, Neb., John P. Tinley, of Council Bluffs, and John D. Denison, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., Frank E. Northrop, Co. Atty., of Council Bluffs, Verne Byers, Co. Atty., of Harlan, and Charles E. Swanson, Special Prosecutor, of Council Bluffs, for the State.


DE GRAFF, J.

The defendant, M. W. Paden, was jointly indicted with A. R. Drake and John F. Smith by the grand jury of Pottawattamie county, Iowa, for the crime of conspiracy. On motion of the defendant, Paden, a change of venue was granted to Shelby county, and he elected to be tried separately. For the purposes of this opinion the allegations of the charge constitute a sufficient statement of the facts. The indictment alleges that on or about the 29th day of August, 1922, the defendants did willfully, unlawfully, and feloniously conspire and confederate together with the willful, unlawful, and malicious intent and purpose wrongfully to injure the business, property, and rights in property of Harding, Cohn & Smead, a copartnership, as owners of the Liberty Theater in Council Bluffs, Iowa, and to do certain illegal acts injurious to the public health, morals, and police, and to the administration of public justice by then and there mutually conspiring and agreeing to cause and suffer a public nuisance at, in, and about the Liberty Theater building at 547 West Broadway in Council Bluffs. The indictment further alleges a specific overt act on the part of the said defendants in that they did willfully, unlawfully, and maliciously throw certain noisome substances, chemicals, and fluids, emitting foul, offensive, and sickening odors, smells, and gases, dangerous and injurious to the public health and comfort and to said property, upon the doors, floor, walls, and lobby of said theater building, thereby causing a public nuisance as aforesaid, and maliciously injuring said theater building.

The accusation was the outgrowth of an industrial controversy between the managers and the movie operators of certain theaters in Council Bluffs, Iowa. No question arises on the sufficiency of the indictment, and it will be observed that the conspiracy charged requires an overt act to be alleged. Section 13755, Code 1924.

[1] An indictment for public nuisance must allege specific facts and circumstances (State v. Decker & Sons, 197 Iowa, 41, 196 N. W. 600), and the same rule prevails in charging a conspiracy “to cause and suffer a public nuisance.” The statute further provides:

“Upon a trial for conspiracy, a defendant cannot be convicted unless one or more overt acts alleged in the indictment are proved, when required by law to constitute the offense, but other overt acts not alleged in the indictment may be given in evidence.” Section 13902, Code 1924.

However, the overt act to which reference is made in the indictment is not here involved, nor is the sufficiency of the evidence in proof thereof. The state offered evidence of several overt acts not charged in the indictment, and appellant's primary error gravitates around this evidence. Did the court err in admitting evidence relative to certain overt acts without first requiring the state to establish a prima facie case of conspiracy? Was the error, if any, cured by striking said evidence from the record, with the admonition by the court to the jury not to consider same?

[2][3][4][5][6][7][8] A conspiracy...

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13 practice notes
  • State v. Carey, No. 52942
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1969
    ...cure the error. It is, however, a rule which may easily be abused,--especially in the trial of a criminal case--* * *.' In State v. Paden, 199 Iowa 383, 384, 202 N.W. 105, 107, we held some evidence may be so 'toxic' in character as to poison the minds of the jury beyond any hope of removin......
  • State v. Peterson, No. 53922
    • United States
    • United States State Supreme Court of Iowa
    • September 9, 1971
    ...It is, however, a rule which may easily be abused,--especially in the trial of a criminal case--* * *." See also State v. Paden, 199 Iowa 383, 202 N.W. 105 and State v. Tharp, 258 Iowa 224, 138 N.W.2d This court has recognized that prompt withdrawal of improper testimony, even with ful......
  • State v. Schenk, No. 46268.
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1945
    ...evidence and that it was the province of the court to determine the order in which the evidence should be introduced. State v. Paden, 199 Iowa 383, 202 N.W. 105;State v. Walker, 124 Iowa 414, 100 N.W. 354;State v. Arthur, 135 Iowa 48, 109 N.W. 1083;State v. Schreck, 231 Iowa 542, 1 N.W.2d 6......
  • State Of Iowa v. Hanes, No. 08-1231.
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 2010
    ...error that gave the jury such damaging information that it could not reasonably be expected to actually disregard it. See State v. Paden, 199 Iowa 383, 386, 202 N.W. 105, 107 (1925) (holding certain evidence proffered and subsequently stricken at trial caused incurable prejudice because “[t......
  • Request a trial to view additional results
13 cases
  • State v. Carey, No. 52942
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1969
    ...cure the error. It is, however, a rule which may easily be abused,--especially in the trial of a criminal case--* * *.' In State v. Paden, 199 Iowa 383, 384, 202 N.W. 105, 107, we held some evidence may be so 'toxic' in character as to poison the minds of the jury beyond any hope of removin......
  • State v. Peterson, No. 53922
    • United States
    • United States State Supreme Court of Iowa
    • September 9, 1971
    ...It is, however, a rule which may easily be abused,--especially in the trial of a criminal case--* * *." See also State v. Paden, 199 Iowa 383, 202 N.W. 105 and State v. Tharp, 258 Iowa 224, 138 N.W.2d This court has recognized that prompt withdrawal of improper testimony, even with ful......
  • State v. Schenk, No. 46268.
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1945
    ...evidence and that it was the province of the court to determine the order in which the evidence should be introduced. State v. Paden, 199 Iowa 383, 202 N.W. 105;State v. Walker, 124 Iowa 414, 100 N.W. 354;State v. Arthur, 135 Iowa 48, 109 N.W. 1083;State v. Schreck, 231 Iowa 542, 1 N.W.2d 6......
  • State Of Iowa v. Hanes, No. 08-1231.
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 2010
    ...error that gave the jury such damaging information that it could not reasonably be expected to actually disregard it. See State v. Paden, 199 Iowa 383, 386, 202 N.W. 105, 107 (1925) (holding certain evidence proffered and subsequently stricken at trial caused incurable prejudice because “[t......
  • Request a trial to view additional results

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